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Insight&CommentaryonOccupationalSafety&HealthIssues

Employers covered by OSHA’s recordkeeping rule are required to prepare and post the OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” beginning February 1 and keep the form posted until April 30. The form must be posted at each establishment covered, in a conspicuous place where notices to employees are customarily posted.

Prior to posting, a company executive must review the OSHA 300A and certify that “he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.”

Under OSHA’s rule, a company executive can be one of the following: (1) an owner of the company (only if the company is a sole proprietorship or partnership); (2) an officer of the corporation; (3) the highest ranking company official working at the establishment; or (4) the immediate supervisor of the highest ranking company official working at the establishment.

OSHA can cite an employer who fails to post the OSHA Form 300A as required. Employers should take steps now to ensure they are fully compliant.

Starting the year with a bang, the Cal/OSHA Division said it intends to finalize several new standards this year, including on indoor heat illness prevention. It also intends to release new workplace violence prevention for general industries regulations and new regulations to affect the Cannabis industry. The agency has scheduled three advisory meetings within the next month.

Workplace Violence Prevention Plan for General Industries

In 2017, a rise in workplace violence incidents (including active shooter situations and theft) has OSHA pushing for a higher, heavily regulate standard to ensure that all employees are safe and to hold employers liable for preventable violence incidents. The expected workplace violence prevention standard for general industries likely will affect all employers, except the Department of Corrections and health care employers. The Cal/OSHA advisory board will accept comments starting at the January 25, 2018, hearing on this subject.

Cannabis Industry

By March 1, 2018, the Division of Occupational Safety and Health must convene an advisory committee to evaluate whether there is a need to develop industry-specific regulations related to marijuana use. The Division plans to have an advisory board to discuss the unique health and safety hazards faced by workers employed in the marijuana industry, including:

Exposure to second-hand marijuana smoke;

Potential risks of fire and explosions;

Potential risks of exposure to airborne contaminants;

Potential risks of armed robberies and other workplace violence issues; and

Repetitive strain injuries.

The advisory board will accept comments starting at the hearing on this subject, which is set for January 31, 2018.

Indoor Heat Illness

The indoor heat illness prevention plan standard likely will affect employers who operate an indoor facility that at any time may increase to above 80 degrees Fahrenheit. A non-exhaustive list of industries subject to this standard are kitchens, manufacturing, refineries, factories, retail, and other warehouses, and constructions sites. If your facility is not air-conditioned, this standard likely will apply to your workplace. The advisory board will accept comments starting at the hearing on this subject, which is set for February 8, 2018.

If you have concerns regarding these standards, please contact Jackson Lewis to discuss whether you should provide comments to the proposed regulations.

A vote on Scott Mugno to become the head of OSHA has been postponed by the Senate Committee on Health, Education, Labor and Pensions (HELP). Mr. Mugno had already won approval by the committee on a straight-party line vote on December 13, 2017 but his nomination must be reconsidered since it was not confirmed by the full Senate before the end of last year’s term.

Mr. Mugno has been a safety executive with FedEx Ground since 2011 and has served as Chairman of Research Advisory Committee at American Transportation Research Institute since January 2017. His management background has raised concerns among some Democrats and labor advocates about his commitment to workplace safety and that he will take actions to weaken OSHA and roll-back enforcement.

Despite these concerns, the leadership vacuum coupled with a decline in the number of OSHA inspectors has made it crucial for Mr. Mugno to take control of OSHA to provide much needed guidance to the agency and employers. Once confirmed, Mr. Mugno will have to tackle a number of pressing issues such as setting budget and staffing levels, directing enforcement priorities and making policy changes, implementation of OSHA’s new electronic injury and illness reporting rules, and determining how new standards will be enforced such as those concerning silica exposure.

A new date and location for the vote has not been confirmed but should be rescheduled in the next few weeks.

Kate O’Scannlain was confirmed as the Solicitor of Labor for the U.S. Department of Labor by the Senate on December 21, 2017. O’Scannlain will serve as the Agency’s top lawyer, helping the Labor Department set the policy and enforcement agenda. Prior to her confirmation, O’Scannlain was a partner at Kirkland & Ellis, LLP.

During her confirmation hearing, O’Scannlain recognized the challenging times that the American workforce faces and vowed to collaborate with career officials at the Labor Department and listen to all stakeholders before committing to any course of action. She testified that she would help further the Trump Administration’s Labor agenda, including job creation, advancing opportunities through apprenticeship and job-training programs, improving workplace safety, assisting veterans in finding work, and assuring work-related benefits and rights are protected.

O’Scannlain also noted during her confirmation hearing that the vast majority of employers want to comply with the law and that many employers spend a significant amount of money on compliance costs but that the rules and regulations are unclear and confusing. She testified that the laws “should not be a game of ‘gotcha’ or involve gamesmanship using novel legal theories.” She committed to helping employers understand their obligations to their workforce and to reduce unnecessary redundancies in the law.

President Trump’s nominee to head OSHA—Scott Mugno—will need to be re-nominated by President Trump before the Senate can vote due to a Senate rule that all nominations are returned to the President at the end of the year if not confirmed.

OSHA is beginning the New Year with higher penalties. Effective today, civil penalties for violations of OSHA standards and regulations increased to adjust for inflation. In a Federal Register notice issued today, the U.S. Department of Labor increased civil penalties for a variety of regulated areas, such as Immigration, Child Labor, Wage and Hour, MSHA and OSHA. “The U.S. Department of Labor (Department) is publishing this final rule to adjust for inflation the civil monetary penalties assessed or enforced in its regulations, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act). The Inflation Adjustment Act requires the Department to annually adjust its civil money penalty levels for inflation no later than January 15 of each year.”

OSHA penalties for other-than-serious, serious and failure to abate violations increased by $259 from $12,675 per violation to $12,934 per violation. The penalty for willful and repeat violations increased from $126,749 to $129,336, an increase of $2, 587. The new penalty increase is effective today and will apply to any citations issued today or through the remainder of 2018.

The 2018 maximum penalties are as follows:

Other-than-Serious: $12,934

Serious: $12,934

Repeat : $129,336

Willful: $129,336

The penalty increase applies to Federal OSHA states, however, OSHA expects that states operating their own occupational safety and health program will align penalty structures with Federal OSHA so that such programs are equally effective as Federal OSHA.

It may be back to the drawing board for OSHA. OSHA had previously announced its intention to make changes to its 2016 Improve Tracking of Workplace Injuries and Illnesses regulation, but the recent Unified Agenda of Regulatory and Deregulatory Actions released December 14, 2017 provides some specific detail on what employers may expect as proposed changes to this regulation.

When OSHA initially proposed the Improve Tracking of Workplace Injuries and Illnesses regulation, employers voiced employee privacy concerns over the requirement (for establishments with 250 or more employees which were required to keep injury and illness records) to electronically submit to OSHA Forms 300, 301 and 300A. OSHA originally intended to publish the data with the reassurance to employers that personally identification information (PII) would not be released. The rationale for publishing the collected injury and illness data was that public exposure would result in improved safety and health.

In issuing the original regulation, OSHA stated its intention not to publish personally identifiable information (PII) included on Forms 300 and 301. However, in this recent regulatory agenda OSHA has now admitted it cannot guarantee that PII will not be released. If that is the case, the Agency will not make the information publicly available. Consequently, the stated safety and health benefit in collecting the data no longer exists. Therefore, OSHA proposes to limit the electronically collected information to the OSHA 300A Forms, which do not contain PII. In the regulatory agenda OSHA stated:

OSHA proposes to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records.

It appears OSHA will limit the electronic submission of injury and illness data to the 300A Form for all covered employers. Additionally, OSHA will seek comment on the costs and benefits of adding the Employer Identification Number (EIN) to data. This would allow OSHA to match its data to the Bureau of Labor and Statistics (BLS) Survey of Occupational Injury and Illness and would relieve employers of the burden of reporting to both OSHA and BLS. OSHA is also seeking comment on “feasible alternatives” to its proposal.

Last week we reminded employers covered by the recordkeeping requirements in Section 1904 that December 15th was the deadline to electronically submit 2016 300A forms for certain employers. In true holiday spirit, OSHA announced in today’s OSHA Quick Takes that it will continue to accept “2016 OSHA Form 300A data through the Injury Tracking Application (ITA) until midnight on December 31, 2017.” Additionally, the Agency will not take enforcement action against those employers who submit their records during the two week period December 15-December 31. However, “[s]tarting January 1, 2018, the ITA will no longer accept the 2016 data.”

So Happy Holidays from OSHA…if you haven’t done so yet (and if you are required to submit your 2016 300A form) then make sure to do so by December 31, 2017.

Employers covered by the recordkeeping requirements in Section 1904 are reminded that Friday, December 15th is the DEADLINE to electronically submit their 2016 300A. This requirement applies to establishments with 250 or more employees and to establishments in certain high-risk industries with 20 or more but less than 250 employees.

The following OSHA-approved State Plans have not adopted the requirement to submit injury and illness reports electronically: CA, MD, MN, SC, UT, WA and WY and therefore establishments in these states are not currently required to submit their 300A.

Although the Department of Labor under new Labor Secretary Alex Acosta has indicated that it will be scaling back on the broad interpretation of joint employer for purposes of determining enforcement liability, on November 6, 2017, OSHA filed an appeal to the U.S. Court of Appeals for the Fifth Circuit seeking to preserve the agency’s multi-employer citation policy which has been in place for decades. Under this policy, OSHA maintains that it has the authority under the OSH Act to issue citations not only to the employer whose employees are exposed to a hazardous condition (exposing employer) but also to employers who create, correct or control the worksite even if its own employees are not exposed to the hazard. OSHA has extensively used this doctrine in multi-employer construction worksites to cite the general contractor as the “controlling employer” in addition to subcontractors.

However, this doctrine was recently challenged and invalidated by an administrative law judge in a case involving a citation issued against a general contractor in Texas. In Acosta v. Hensel Phelps Construction Co., OSHA issued a citation to the subcontractor whose employees were exposed to cave-in hazards in an excavation. OSHA also issued the same citation to the general contractor as the “controlling employer” at the worksite. On the contractor’s motion for summary decision, the administrative law judge held that the multi-employer doctrine was invalid in the 5th Circuit (which covers Texas) based on a prior decision which the judge found was controlling precedent in the circuit. Consequently, the judge vacated the citation against the contractor since it did not have any employees exposed to the cited hazard. The Review Commission declined the Secretary of Labor’s request to review the decision which made the judge’s decision a final agency order.

The Secretary has now filed an appeal with the 5th Circuit seeking to reverse the order and to obtain a decision affirming the multi-employer doctrine in the circuit. Primarily, the Secretary argues that its interpretations and policies are entitled to deference and that the prior 5th Circuit decision relied upon by the administrative law judge is not controlling as it involved a negligence matter and not an OSHA case.

A decision in this case will have huge impact for construction employers in Texas, Louisiana and Mississippi which are covered by the 5th Circuit. In addition, a decision by the 5th Circuit on OSHA’s multi-employer doctrine could present a split among federal circuit courts of appeal regarding the agency’s enforcement and citation authority under the OSH Act. For now, employers should continue to expect OSHA to vigorously defend and enforce its multi-employer doctrine.

We will continue to update this blog with any new developments is this case.

Join Tressi Cordaro and Brad Hammock on December 13th for a complimentary webinar that will give you 10 key steps for ensuring your recordkeeping logs are up-to-date, accurate, and OSHA compliant. More information and the link to register can be found here. We hope to see you there!

Jackson Lewis P.C.

About Jackson Lewis

Founded in 1958, Jackson Lewis is dedicated to representing management exclusively in workplace law. With 800 attorneys practicing in major locations throughout the U.S. and Puerto Rico, Jackson Lewis is included in the AmLaw 100 and Global 100 rankings of law firms. The firm’s wide range of specialized areas of practice provides the resources to address every aspect of the employer/employee relationship. Jackson Lewis has one of the most active employment litigation practices in the world, with a current caseload of over 6,500 litigations and approximately 650 class actions.